A few examples of classic Environmental claims include oil spills, storage tank leaks, dry cleaning chemical releases, landfill contamination and odor, laboratory waste, contaminated water, and water loss/mold claims. Sometimes toxic tort claims, based on bodily injury or wrongful death allegedly caused by industry-made chemicals (e.g., benzene, Bisphenol-A, and diacetyl) or even natural substances (e.g., asbestos, mold, and lead), are thought of as environmental claims. All of these classic and non-traditional “environmental” claims present similar types of challenges for the claims professional.

A variety of factors make Environmental claims challenging. By definition, they typically involve complicated scientific, medical and legal/regulatory issues.

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For example, to assess the source, extent and remediation options for a pollution claim at an industrial site, environmental professionals, geologists, chemists, structural or mechanical engineers, as well as other consultants or contractors may need to be retained. Some of the remediation work should be handled by a licensed professional to be in compliance with applicable state and federal laws, which likely require specific steps including notification, assessment and disposal to be taken before a site can be “closed,” with or without conditions for future handling.

In many claims, decades can elapse between the action that caused the contamination, and the alleged harm. Sorting out the facts to determine who did what to cause the claim now being made can require a virtual archeological dig, the interpretation of decades-old laws and standards, as well as the impact of potentially crucial intervening events. Assessing the precise triggering event and its consequences, in bodily injury claims for example, frequently requires the retention of a team of experts such as industrial hygienists, epidemiologists, and occupational health physicians. The claims-handling process can look like an episode of CSI.

Environmental claims present a multi-dimensional challenge in that they typically involve many parties, all of whom look to shift the responsibility for the cost of cleanup to someone else. Even the simplest of oil spills may involve the homeowner, the fuel delivery company, the heating service company, valve and boiler manufacturers, and others. Larger contamination claims, such as landfill sites, typically involve many parties, sometimes hundreds, including the site owners, waste depositors and other potentially responsible entities.

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Lastly, insurance coverage issues in Environmental claims are common and hotly contested. Pollution claims involving activities that occurred over decades have the potential to trigger many insurance policies, both at primary and excess levels, and generate complex risk allocation issues. Questions may also arise about whether the policyholder must contribute to the cost of cleanup for periods of time when insurance either was not purchased or is otherwise unavailable.

Apart from allocation, there are numerous exclusions — such as those related to pollution or owned property — that may apply to limit or eliminate coverage. Even the term “pollutant” has been hotly contested. Beware of this minefield and avoid trouble by knowing the policy and the governing law, and carefully crafting coverage positions and reservation of rights letters.

Five tips for Environmental claims professionals

With this background, it is recommended that claims professionals follow these five tips to bring environmental claims to successful resolution:

1. Investigate and move the claim forward promptly

A basic tenet of all claims handling is prompt investigation.

This is especially true with Environmental claims.

First, a pollution event will likely trigger a formal response process under federal and state law, which requires that specific steps be taken on a set schedule.

Second, prompt handling may assist in mitigating damages by quickly limiting the scope to the contamination.

Third, prompt responsive action helps to avoid bad faith claims by eliminating a common bad faith argument — unnecessary delay — and by maintaining a positive relationship with the claimant.

2. Use professional expertise

With a pollution incident such as an oil spill, it is important to get an environmental professional to the site as quickly as possible.

Your consultant may determine the cause of the claim at the outset, assess whether anything can be done to limit the scope of the problem, and help meet the regulatory compliance requirements. The professional can document important information through photographs, identify key witnesses, and preserve evidence to reduce the risk of a spoliation claim.

Most importantly, a trusted environmental professional can provide assistance throughout the claim with advice on alternative causes and remediation techniques. This individual also has the ability to monitor costs to ensure that other professionals and contractors' approaches and charges are reasonable.

Beware of how communication with a consultant is handled. Texting may be easy, but informal messages are easily misinterpreted. Assume everything sent to an expert will be available to the policyholder's attorney and carefully craft any communications.